New Spouses and child support

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What happens to your child support when you remarry?

 Child support in California is based primarily on each parent's income and the amount of time each spends with their children (timeshare).  A significant other's income is not supposed to be considered in calculating support.

Family Code Section 4057.5(a)(1) and (2) prevents a court from considering a new partner or a new spouse's income in making a child support order, except for "extraordinary cases" to prevent "extreme and severe hardship" to children.  These extraordinary cases are rare.

The law is not as absolute as it first appears.  New mate income cannot be directly considered, but can be used to figure out each parent's tax liability.  (See the case of County of Tulare v. Campbell (1996) 50 Cal. App. 4th 847). The child support computer program (Dissomaster™) takes a parent's gross income and tax filing status, determines net income and then calculates support using the California Guideline formula.

Therefore, a new marriage can result in an order for less support.  In a case where father earns $4000 a month and has a 30% timeshare, with 3 children, and mother earns $2000 a month - child support is $916 a month.  Later, the only change is father marries a woman earning $7500 a month.  After this one change, child support is now $808 a month - $108 a month less.

Even though father's lifestyle has clearly changed for the better, support is less.  This is because the law only allows the Court to look at father's net income - which is now $4000 a month after tax in an $11500 bracket.  Like it or not, be prepared for this to be an issue when child support is decided.

For more information, contact us.

Ernest A. Casacca

 

Custody After Separation

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Most parents starting the process of dissolving their marriage informally arrange to share time with their children (with or without attorneys, through private mediation or through Family Court Service). If Mom and Dad can't agree, a Court will decide the timing of when children are with their parents.

The choices a parent makes upon separation are important in future custody decisions.  The Court must determine what custodial order is in a child's best interest.  Courts are required to consider a child's health, safety and welfare (Family Code section 3011(a) and 3020 (a)) and whether parents are committed to allowing the other parent frequent and continuing contact (Family Code section 3020(b)).

Under Family Code section 3046, the Court is not supposed to consider temporary absences or relocations from the family home in making custody orders, if the absence is of short duration and the absent parent shows and makes reasonable effors to demonstrate an interest in maintaining contact with their children. The policy gives a parent a chance to escape from violence or to temporarily get away from the stress of a marriage that is falling apart.

However, if you are gone from your children for a period of seven (7) days, it is harder to argue in court that your children are psychologically unequipped to be away from you for 7 days.

The longer between separation and asking a court to decide issues of custody, the more a court will rely on what it sees as the status quo. Many judges rely on the arrangements parents put in place before coming to court. The basic idea is that you and your spouse know more about the other's parenting abilities than anyone. If you have worked out a reasonable schedule, the court may not second guess or change it.

When and if you work out an informal schedule with your spouse, be sure the arrangement meets your children's needs. If that schedule does not turn out good for your children, the burden will be on you to prove why the arrangement you and your spouse agreed to not too long ago must change.

Two Types of Custody Orders

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Legal and Physical Custody

There are two types of custody orders a court will make in a family law matter - legal and physical.  Physical custody is the division of the day to day responsibility between parents.  Sole physical custody means one parent has the primary responsibility (timeshare) caring for their children.  (See Family Code Section 3007)  Joint physical custody means both parents have roughly equal timeshare with their children.  (See Family Code Section 3004)  Both sole physical and joint physical custody orders are made with great frequency.

Legal custody is also ordered either jointly or solely to one parent.  Unlike physical custody, joint legal custody is the order of the Court the overwhelming percentage of time.  In general, sole legal custody is ordered on those occasions when one parent's behavior is demonstrably inappropriate.

The policy of the state of California is that legal custody, in particular, should be shared between the parents.  Joint legal custody anticipates that parents will consult with each other, cooperate with and finally, together, reach decisions on the major issues in their children's life.  Those issues include whether your child attends public or private school, who will be your child's doctor or dentist and who will provide child care when the parent with custody is unavailable.

A parent with joint legal custody, even if the other parent has sole legal custody, is entitled to access to their child's medical, dental and school records (under Family Code Section 3025).

Another significant decision to make for your child is whether mental health treatment is necessary.  If there is significant conflict between parents involving their children, great care must be taken in selecting a therapist.  The wrong therapist can cause more problems than they solve.  Local family law attorneys are good sources of information regarding who are most appropriate therapists for children of divorce.

For more information, contact us.

Ernest A. Casacca

Dissolution of Marriage - Community Property Question

When a dissolution of marriage file is opened with the Court, form FL-110, known as the Summons, is required. 
 

On page 2 of the Summons, there is a notice that "If either party to this action should die before jointly held community property is divided, the language in the deed that characterizes how title is held (i.e., joint tenancy, tenants in common, or community property) will be controlling, and not the community property presumption."
 

The possibility you could die during the divorce process is just another stressful concept you should address.  Your joint tenancy deed provides that upon your death the other joint tenant(s) is entitled to your share of the property.  If you die before the division of your property, your spouse will receive the property held in joint tenancy.
 

It is possible that if you die as a joint tenant, your spouse could later remarry and transfer your former property to his/her new spouse as a joint tenant.  If your ex later dies, the new spouse now owns 100%.  No matter what you or your former spouses intention was (or is), your children will only have rights to the property that the new spouse decides to give them.
 

You can address this concern simply and forcefully.  A deed transferring your interest in the property from you as a joint tenant to you as a tenant in common cancels the other owners right to your interest upon your death (if you believe the odds are that your spouse may die before you, you may not want to execute this deed). 

You should then make sure you review your will (or have a will prepared) to insure that who you want to inherit your property is able to do so.

 

Marital Status Questions

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Marital Status - Frequently Asked Questions

One of the most frequently asked Marital Status questions by a client contemplating the end of their marriage is "What is the difference between a divorce (dissolution of marriage) and a legal separation?" While the answer is "Not Much", there are important factors for the client to consider in deciding what is best for them.
 

When a Judgment of dissolution of marriage or legal separation is entered, the issues of custody of your children, child support, spousal support, and division of community property will be resolved. However, in a legal separation action, the Judgment does not terminate your marital status.
 

There are many good reasons not to terminate marital status, even after taking legal steps to end your relationship. There are religious and emotional reasons to maintain the status of a married person. There are also legal reasons to defer ending your marital status.

 

You may qualify as a former spouse for Social Security benefits if you remain married for more than 10 years. If your spouse provides health insurance coverage for your family under an employee group plan, you can remain covered so long as your marital status is not terminated.

 

The downside to a Judgment of Legal Separation is if terminating your marital status becomes critically important in the future, you will have to file a new Petition for Dissolution of Marriage. A new filing fee of $435 must be paid and you must wait at least 6 months and a day before your marital status ends.

 

However there is one additional option. You can file for Dissolution of Marriage and obtain a judgment that reserves jurisdiction to terminate marital status at a later date. Form FL-180 (Judgment-Dissolution) allows parties to be restored to the status of single persons "on a date to be determined on noticed motion of either party or on stipulation." There is no additional waiting period or filing fee for a new Petition.

 

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